On 24 February 2022, the Court of Justice handed down its judgment in Case C‑563/20, ORLEN KolTrans sp. z o.o. v Prezes Urzędu Transportu Kolejowego, on the interpretation of Article 30(2), (5) and (6) of Directive 2001/14/EC. The request has been made in proceedings between ORLEN KolTrans sp. z o.o. (“ORLEN”), a railway undertaking whose registered office is situated in Płock (Poland), and the Prezes Urzędu Transportu Kolejowego (President of the Office for rail transport; the “President of the ORT”) concerning the determination of the level of charges for the use of the railway infrastructure owned by PKP Polskie Linie Kolejowe S.A. (“PKP”) in Poland.

On 29 September 2010, the President of the ORT approved PKP’s proposal to amend the unit rates of the basic charge for minimum access to its infrastructure, which constitutes one of the variables enabling the infrastructure manager to determine the amount of the charges payable by a railway undertaking for its use. PKP, therefore, applied the new unit rates in order to determine the amount of the infrastructure charges to be paid by ORLEN, in accordance with the agreement concluded by the two undertakings. After having reviewed the charges paid to PKP, and considering that their method of calculation was contrary to Directive 2001/14, ORLEN requested the president of the ORT to initiate an administrative procedure for the annulment of the 2010 approval decision. Since, however, that application was rejected, ORLEN brought an action before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to refer to the Court of Justice two questions for a preliminary ruling.

By its first question, the referring court asked whether Article 30(2)(e) of Directive 2001/14 must be interpreted as meaning that a railway undertaking which uses or intends to use the railway infrastructure must be able to participate in a procedure conducted by the regulatory body for the purpose of adopting a decision approving or rejecting draft unit rates for the basic charge for minimum access to infrastructure submitted by an infrastructure manager, which would confer on it the status of party to such a procedure.

According to the Court, Article 30 of Directive 2001/14 does not lay down a procedure for the approval of infrastructure charges, not requiring its managers to subject those that they intend to levy, or the variables used to calculate them, to the regulatory body for approval, but rather establishing that the review of the charges already set is a matter for the latter, which gives its decision either in the context of an appeal or on its own initiative.

By its second question, the referring court asked whether Article 30(5) and (6) of Directive 2001/14 must be interpreted as meaning that a railway undertaking which uses or intends to use the railway infrastructure must be able to challenge before the competent court the decision of the regulatory body approving the unit rates of the basic charge for minimum access to infrastructure established by the infrastructure manager.

According to the Court, Directive 2001/14 confers on railway undertakings which use or intend to use the railway infrastructure rights which must be afforded judicial protection, and therefore a national legislation that does not provide for a judicial remedy enabling those undertakings to challenge a decision of the regulatory body capable of adversely affecting their rights under European law is such as to render the exercise of those rights impossible.

Marco Stillo